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Judge sends decadeslong Oswegatchie Hills fight back to East Lyme zoning board

East Lyme — A Connecticut Superior Court judge has punted a planned 840-unit affordable housing development, on the hills over the Niantic River, back to the Zoning Commission for "further review."

The latest round of legal wrangling is part of a situation that goes back to 2000, when Glenn Russo began efforts to develop what is now 236 acres in the Oswegatchie Hills. The move unleashed a decadeslong firestorm of local opposition and litigation that has expanded to include nonprofit environmental groups.

The court case alone took six years. Russo's Landmark Development in 2015 sued the Zoning Commission for going "beyond its statutory authority" in a decision that conditionally approved the developer's preliminary site plan and rezoning application. He had applied to rezone 123 acres in the hills as an affordable housing district, reserving 36 acres for development and 87 acres for open space.

Judge Marshall Berger in his Oct. 22 ruling cautioned the decision "should not be interpreted as a victory for the commission or a defeat for the plaintiffs." Instead, it places Russo's zone change application and preliminary site plan back in front of the commission, so the applications can go through the local zoning regulation process that requires more detailed information about the impact to the environment and public utilities.

According to the judge, the Zoning Commission's approval — and the conditions put upon it — are meaningless in the absence of a final site plan. He said the commission has "neither approved nor denied the application or even mandated anything."

First Selectman Mark Nickerson in a phone interview Wednesday called the decision "a significant victory" because it requires Russo to come up with "actual engineered plans."

"It's impossible for decisions to be made about development when actual plans haven't been submitted," he said. "And that's what this developer has been doing for the last two decades."

Russo in a Wednesday phone call described Nickerson's claims as being "in complete conflict" with the judge's statement that the verdict should not be interpreted as a victory for the commission.

"In the same way Nickerson tried to put a positive spin on the town's requirement to issue 118,000 gallons of sewer (capacity), he's trying to put the best spin on this judge's decision," Russo said.

The state Supreme Court in 2018 upheld an August ruling stating the town must grant Russo more access to the town's sewer system.

Russo disagreed with Nickerson's contention that the developer is opposed to providing detailed plans. "In fact, we have always taken the position that, per the regulations, the detailed engineering drawings are required and we have always said we will provide detailed drawings at the final site plan stage," Russo said.

Town regulations require a "final site plan" — not a preliminary one — before a zone can be changed to an affordable housing district.

The commission had ruled that only the portion of Landmark's property that falls within the town's sewer service district will be rezoned as an affordable housing district. The ruling also states that Landmark must meet several requirements, including providing information on the development's potential environmental and coastal effects and submitting a final site plan application.

Landmark's appeal alleges that the commission did not meet the requirements of state affordable housing law to justify that the protection of the public interest in health or safety outweighs the need for affordable housing.

Local intervention

While the court case initially involved the developer and Zoning Commission, the three environmental nonprofit groups — Save the Sound, Friends of Oswegatchie Hills and Save the River-Save the Hill — became involved through a legal process that allows those with a personal stake in the outcome to "intervene" in a case.

Russo's property directly abuts the 457-acre Oswegatchie Hills Nature Preserve.

The groups argued the appeal should be dismissed because the commission's decision is not a final ruling. Landmark still needs to submit to the commission additional information with a final site plan application, the intervenors' documents state.

The three groups in a Monday news release lauded the judge's decision.

Kris Lambert, president of Friends of Oswegatchie Hills Nature Preserve, said it's been "a long five years to get to this point and an even longer 20 years" that they've been fighting for the land and the river.

"The Friends continue to think that absolutely no development on the 236 acres is best for the environment of both the Hills and the River," she said. "In the end it is still our goal to acquire and permanently protect the last bit of undeveloped land on the Niantic River."

The groups said they provided evidence in court that stormwater runoff from the development would unreasonably pollute wetlands and the Niantic River and that the developer had failed to disclose that one of the buildings would actually be located directly on a wetland.

Russo over the phone said a licensed soil scientist who delineated the wetlands on the property showed "that all of our buildings are outside the wetlands."

Roger Reynolds, senior legal counsel for Save the Sound, said four judges over 17 years have weighed in on issues related to the property.

"The applicant will finally have to disclose their detailed plans and we look forward to presenting in-depth, science-based information about the devastating and irreversible impacts that this 840-unit monstrosity would have on wetlands, coastal forest and the Niantic River," he said.

Save the River-Save the Hills' founder and President Fred Grimsey reiterated that no development in the hills is the best way to protect the river.

"We are gratified by Judge Berger's decision and recognition that the final site plan, with necessary environmental information about the impact to wetlands and water quality, is needed to determine whether high-density development can be safely constructed in compliance with environmental laws," he said.

Russo said the intervenors lost in their first attempt to get the case thrown out, which was rejected in 2018, and are losing again now with their argument that the developer provided insufficient information in his initial designs.

"We had provided sufficient information, per the court, for a preliminary site plan," he said. "This court had suggested any additional information can be addressed at the final site plan stage. This is specifically what the intervenors tried to avoid."

e.regan@theday.com

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